'Healthy outrage' fuels attorney suing CU, other schools on behalf of men accused of sexual assault

Andrew Miltenberg, a New York City attorney, has become the go-to lawyer for male college students accused of sexual assault who want to sue their universities alleging they were discriminated against because of their gender. (C ourtesy photo)

Andrew Miltenberg insists he's not fighting for men's rights.

The New York City attorney says he's not an activist, nor does he mean to discount the pain and the trauma that sexual assault victims feel.

Miltenberg, a 51-year-old New York City attorney who has spent much of his career in business litigation, describes himself instead as a champion for civil rights and due process.

That's why he's become the go-to lawyer for male college students who claim they've been falsely accused of sexual assault and say their universities are treating them unfairly for the sake of appearing tough on campus sexual violence.

"It's necessary to have a system that allows females to come forward and not feel they'll be subject to retaliation, that their claims will be taken seriously, that their concerns won't be brushed off with comments like, 'Boys will be boys,' and, 'Maybe you shouldn't have been at a fraternity house,'" Miltenberg said. "At the same time, we can't sacrifice due process for that. What you're seeing is the reality that schools currently aren't well equipped to deal with this issue."

Miltenberg is representing "John Doe" — a male student expelled from the University of Colorado's Boulder campus after a CU investigator determined he had sexually assaulted two women — in a lawsuit filed under Title IX, the federal gender equity law that prohibits discrimination on the basis of sex in schools that receive federal funding.

Under Title IX, the U.S. Department of Education Office for Civil Rights requires schools to investigate and, if warranted, take action when they learn that a student has sexually assaulted another student. A school must act, regardless of whether the incident has been reported to law enforcement.

Colleges must use the "preponderance of evidence" standard, a lower burden of proof than the "beyond a reasonable doubt" standard used in a criminal proceedings. For a student to be found responsible, the evidence must show that the student "more likely than not" committed the sexual assault.

Miltenberg represented another John Doe in a lawsuit against CU in 2014. The university settled for $15,000 with that student, who claimed he was suspended for three months after a night of consensual sex.

But Miltenberg's reach goes beyond CU.

He's got a case at the University of Denver, one at Colorado State University-Pueblo and others all around the country. At the moment, he's working with more than 100 male students who are at various points in the investigative process. He said he's turned down requests from dozens more.

Miltenberg said he averages about one inquiry a day from a male student who feels he's been wronged by his school.

Colby Bruno, senior legal counsel for the Victim Rights Law Center, characterizes Miltenberg's work another way. She said Miltenberg and other lawyers doing similar work are "making a nice living" representing rapists.

Meanwhile, campus sexual assault is only just now coming out of the shadows and being recognized as a real problem, Bruno said. Because of new attention on the problem, some victims are being taken seriously for the first time, she said.

"When I refer to these boys, I generally refer to them as rapists," Bruno said. "Because that's what they are."

After hearing Yu's story, Miltenberg began digging into Title IX and the recent push — from the White House, from activists, from students — for colleges to take victims of sexual assault more seriously.

"I get a little bit restless, if you will, at times," Miltenberg said. "And as long as it's something that I think I can competently handle, I'm happy to learn it. This is an area that, over the last couple of years, I tend to be motivated by a little bit of a healthy outrage."

The cases brought by Miltenberg and other attorneys representing male students come at a time when schools are still being criticized for not taking sexual assault seriously enough.

"The accuser sues you, the accused sues you. These campuses are caught between a rock and a hard place," said Sherry Warner-Seefeld, who started the organization Families Advocating for Campus Equality after her son Caleb was expelled from the University of North Dakota on a sexual assault charge the university eventually overturned.

Miltenberg believes that because of the novelty of the suits he's now filing, he began getting national media attention — and lots of it — which brought more and more aggrieved young men out into the open.

'Stakes are so high'

Grant Neal, a Parker native who attended CSU-Pueblo, found Miltenberg after the school suspended him for sexually assaulting a female classmate. He argues the encounter was consensual.

With Miltenberg's help, Neal is suing the university and the U.S. Department of Education. He alleges the campus violated his due process rights and failed to conduct a thorough and impartial investigation because he is male.

Cora Zaletel, a spokeswoman for CSU-Pueblo, said the university could not comment on the case. However, the university's lawyers asked U.S. District Judge Raymond Moore to dismiss the case, writing that Neal can't support the accusation that the university discriminated against him.

"Plaintiff's claim fails as a matter of law because he does not and cannot allege any actual nexus between his gender and his purported mistreatment," CSU-Pueblo's attorneys wrote in a motion to dismiss the case, which Moore has not yet ruled on.

Lawyers for the education department also have asked Moore to throw the case out.

Neal said he's asked around at other universities, including CU's Boulder campus, and has been told that his chances of gaining admission are slim because of the charge on his CSU record.

Ultimately, Neal said he wants to be able to finish his college degree and eventually go to medical school. He said he also hopes schools will improve their processes and procedures for dealing with sexual assault reports moving forward.

"Getting the system right and corrected helps both sides," Neal said. "It helps people from being falsely accused or falsely held responsible. But it also helps people who are actual victims of rape. I don't think there's a black or white, one or the other. Any way you look at it, rape is bad and it's terrible and I would never wish that on anyone — it's an unthinkable, heinous act.

In today's world, a sexual assault charge on a school disciplinary record can have devastating consequences for that male student, said KC Johnson, a professor at Brooklyn College and the author of the book "Until Proven Innocent: Political Correctness and the Shameful Injustice of the Duke Lacrosse Rape Case."

"If they get kicked out, their chances of transferring are very remote, their changes of getting a job down the road are very remote," Johnson said. "If you're guilty, that's not much of a punishment. But if you're innocent, that's quite severe.

"The stakes are so high for an accused student who is wrongfully accused that he almost has no choice but to sue."

Because of the "Dear Colleague" letter and the list of schools under investigation, Miltenberg argues that campuses have begun to "short-circuit" best practices.

"No one wants to end up on that list," Miltenberg said. "It's bad for business. Alumni don't like to see it. Prospective students and parents don't like to see it. The way to stay off that list is to make sure that you aggressively investigate and find responsibility in these cases. And so if you add that to the amount of public pressure that is generally on universities on this issue, you come up with a combustible mix that is really hurting men in the hearing process."

Several Colorado campuses are on that list, including CU, the University of Denver, Colorado State University in Fort Collins and Regis University.

Bruno, the lawyer for the Victim Rights Law Center, doesn't buy Miltenberg's argument.

"A school has absolutely no incentive, literally zero incentive, to find someone responsible when they don't legitimately believe that the person is responsible," Bruno said. "The people who are out there trying to portray this as some sort of witch hunt by a school are totally delusional."

CU officials say they're always trying to be fair to both the respondent and the complainant, and that, above all else, they're trying to get these cases right.

If they're champions for civil rights, why haven't lawyers like Miltenberg been filing lawsuits against colleges on behalf of women who, for decades, weren't treated fairly by universities when they reported being raped, Bruno asked.

Bruno said she believes the lawsuits arose from a culture of male entitlement.

"They're so sorry they got caught and now they're going to make you pay for catching them," she said. "They are very upset about their reputation and they are very upset that this young woman is going about telling the truth to other people."

'Peek behind the curtain'

Miltenberg, however, said he doesn't take cases involving male students who are upset that they got caught.

When deciding whether to take a case, he said he looks for instances of university investigators violating a student's due process rights. He also has to believe the male student's story.

That selectivity is important, Miltenberg said, because he is ultimately trying to push this previously unexplored area of law further.

"A bad plaintiff or a bad case can have a really negative impact on this entire area of law," he said.

With its decision, the appeals court reopened the door for the case to proceed and did not rule on the facts of the case. Nevertheless, Miltenberg said the court was willing to entertain the idea that a university is capable of discriminating against a male student.

Prior to that ruling, judges dismissed most of these types of cases.

Schools, including CU, have been settling these cases quickly, before they can get very far in the legal process.

In the first John Doe case, CU agreed to pay the male student $15,000 in exchange for his withdrawal from the university, less than four months after Miltenberg filed suit.

CU also agreed to tell other universities that the male student would be welcome back on campus and only that he violated two campus rules. The university said it would not provide any further detail about those rule violations, or any other information, without a waiver from the male student.

CU's lawyers said the settlement was a business decision that saved the university "tens of thousands of dollars."

Miltenberg believes otherwise.

"One of the reasons schools settle is, if you get far enough (in the legal process), you're allowed to look at all of their disciplinary records and see how they've handled other cases and peek behind the curtain," he said.

In past interviews with the Daily Camera, Valerie Simons, CU's Title IX coordinator and the director of the Office of Institutional Equity and Compliance, has emphasized her belief that CU's investigation process is fair to both the complainant and the respondent.

Simons was hired two years ago and has revamped the CU office that investigates complaints of sexual assault, as well as other types of complaints, after CU learned it was the subject of a federal Title IX investigation.

"We're always trying to go as quickly as we can, but again, as comprehensively as we can," Simons said of the investigative process last year. "We can't sacrifice a well-done report just for time's sake. The consequences of this, whether you're the complainant or a respondent, are incredibly important."

CU recently amended its investigative process so that both the complainant and the respondent are provided a written evidence summary before investigators make a determination in the case.

"What that does is it gives both parties equal and fair opportunity to provide additional or clarifying information back to the university before any conclusions have been reached," said Llen Pomeroy, a deputy Title IX coordinator and CU's director of investigations, earlier this year. "We have increased our transparency, our fairness, our due process rights and really our accountability to everyone involved."

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